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Edition 59

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Essay

Proud or shameful legacy

Justice and the rule of law

IT IS TAKEN as a universally acknowledged truth in Western democracies that a strong rule-of-law tradition fosters stability and growth. Countless economic studies back this up; paeans have been written on the indispensible virtue of the rule of law to developing countries. It is included in the prescription of the Washington Consensus for ailing economies, and is a foundational principle of the Commonwealth Charter. In every Commonwealth country, except Rwanda and Mozambique, the legal system in place is a virtual replica of the much-vaunted British model of common law – the fountainhead of the rule of law.

But has the legacy of this model been a force for good across the Commonwealth? British historian Niall Ferguson proclaimed in his 2003 book Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (Penguin) that ‘no organisation in history has done more to…impose Western norms of law, order and governance around the world’. This is true, but if surveyed, would a majority of Commonwealth citizens think that the legal system has played a role in improving the quality of their lives?

The Royal Commonwealth Society commissioned a poll in 2009, on the occasion of the sixtieth anniversary of the Commonwealth, which found a high degree of ignorance about, and indifference to, the Commonwealth among seven countries surveyed. Half of the respondents could not name even one activity carried out by the organisation. Most likely, if polled again, people would be equally apathetic and consider that the contribution of the rule of law to their wellbeing has been vanishingly small.

Clearly, there can be no uniform answer to such a question and, like that ancient Indian allegory of the blind men and the elephant, it depends on the perspective and position of those to whom the question is asked. Still, we must face the unpleasant fact that far too many people mistrust the legal system and consider it an expensive game for the rich and sophisticated. How did it come to this – and is it too late to alter this bequest?

 

WHEN THE BRITISH began colonising territories across six continents, they brought with them the common law of England. In time, it replaced existing customary law and indigenous systems of settling disputes in these territories (with the exception of Quebec, South Africa and, to some extent, St Lucia, which retained a substantial body of French law in its civil code). Three hundred years later, the British legal system had become firmly entrenched around the world. Robed, precedent-citing barristers toting tomes like Archbold Criminal Pleading, Evidence and Practice and Chitty on Contracts argued before judges in powdered wigs, perspiring in the oppressive, tropical heat of the colonies. This staid – if sometimes caricaturish – emblem of the rule of law was ubiquitous in territories as diverse as Papua New Guinea, Fiji, Australia and other Pacific islands; Cyprus and Malta; Canada and the English-speaking Caribbean; India, Malaysia and Singapore; Botswana, Kenya, Tanzania, Sierra Leone, Zambia and many more.

It hardly changed after the colonies began their march for independence following the Second World War. British Colonial Secretary Lord Cranborne had famously declared in 1942: ‘…we are pledged to guide colonial people along the road to self-government within the framework of the British Empire.’ They made good on that pledge. The new nations that emerged from the cocoon of colonialism did not go far afield; rather, they immediately swelled the ranks of the new Commonwealth of Nations that had arisen, phoenix-like, from the ashes of British imperium.

Sure enough, locals replaced English judges and populated the ranks of the legal profession – but otherwise, the system remained intact, with all its ill-suited accoutrements. This was probably to be expected, considering that many leaders of the independence movements in the colonies had been lawyers, proud of their training at top-tier British universities – among whom were Lee Kuan Yew of Singapore, Norman Manley of Jamaica, Mohandas Gandhi and Jawaharlal Nehru of India, Seretse Khama of Botswana, Tunku Abdul Rahman of Malaysia, Errol Barrow of Barbados, Forbes Burnham of Guyana, Muhammed Ali Jinnah of Pakistan and John Compton of Saint Lucia.

The same had been true in the British dominions that had won independence a bit earlier. Sir John Alexander MacDonald, Canada’s first prime minister and a lawyer, had a major hand in drafting legislation creating the federal system that led to the formation of the Dominion of Canada; and Sir Edmund Barton was a barrister who became the first prime minister of the new federation of Australia.

Some of these same leaders, or other local barristers trained in England, negotiated the independence constitutions at conferences in London. The British system of governance, with its red, beating heart, was transplanted into the newly birthed nations along with ‘savings clauses’, like stents, to ensure a successful transition. These ‘savings clauses’ insulated pre-existing laws from judicial challenge, stymieing, to some degree, the flexibility of constitutional courts to fashion an indigenous jurisprudence for a given country’s people.

Maintaining the common-law model has undoubtedly yielded substantial economic benefits. A shared legal language and a legal culture of protecting property and contractual rights in fifty-two countries across six continents, with a combined population of 2.3 billion people, clearly facilitates business and commerce. The anxiety, uncertainty and risk of investing in places with an unfamiliar legal culture – like China, Russia or Turkey – are significantly reduced. Nowhere is the connection between a stable business environment and the British legal tradition perceived more acutely than in the Commonwealth Caribbean, where lawyers still cling mawkishly to the coat-tails of the British.

While most former British colonies abolished appeals to the Judicial Committee of the Privy Council in London and replaced it with their own final appellate court, for many Caribbean jurisdictions this was a bridge too far. Only four of the fifteen full members of the Caribbean Community have completely subscribed to the Caribbean Court of Justice (CCJ) established in 2005 to replace the Privy Council. The others remain indissolubly attached to the Council, often exaggerating its importance for boosting the confidence of foreign investors.

Notwithstanding the challenges of distance, cost (about £50,000) and the inconvenience of being required to file appeals through UK-based solicitors, Grenada, in a recent referendum, rejected the idea of replacing the Privy Council with the CCJ. That matter was one of several constitutional changes – including the establishment of an independent Election and Boundaries Commission, and term limits for prime ministers – that the Grenadian government put to the people in the plebiscite. All were roundly defeated after a highly politicised and divisive debate, which the opposition sought to pitch as a referendum on the incumbent government. Antigua, which had also announced a referendum on the issue, decided to indefinitely postpone theirs, after the result in Grenada.

It is unfortunate that in the Commonwealth Caribbean, a referendum or parliamentary vote on the judiciary tends to be used for political gamesmanship. I had the opportunity of introducing the Bill for an Act to establish the CCJ as Belize’s final appellate court sometime in 2006, which required the support of three quarters of the members of parliament. This meant the government could not carry the vote without the support of the Opposition. The Bill was not passed because the Opposition demanded certain concessions from the government, on matters wholly unrelated to the Bill or the CCJ, in exchange for its support. Apart from the politics of it, there are other concerns across the Commonwealth Caribbean. One is that regional institutions have never proven themselves to be beyond the reach of politicians. Another, expressed by Hugh Wildman, a Jamaican citizen and former Director of Public Prosecutions of Grenada, was that judgments from the CCJ are not of the same quality as those of the Privy Council.

The conclusion that must inevitably be drawn from this is that the majority of countries in the Commonwealth Caribbean have no faith in the ability or integrity of their local judges to uphold the rule of law.

 

IF NOTHING ELSE, the lessons of Brexit and the stunning victory of the solipsistic Donald Trump should caution against overstating the benefits to be had by ordinary people from free trade and high-performing economies oiled by the rule of law. A majority of people feel excluded and marginalised from the structures and institutions that are supposed to work in their favour. Resentment builds, and unforeseen consequences then alter the course history was expected to take. This might not be such a bad thing if it leads to a re-evaluation of how institutions like the rule of law have failed ordinary people, whose lives they were designed to protect and improve.

The Commonwealth Charter, adopted in 2012, contains the following elegant and reassuring statement on the rule of law:

We believe in the rule of law as an essential protection for the people of the Commonwealth and as an assurance of limited and accountable government. In particular we support an independent, impartial, honest and competent judiciary and recognise that an independent, effective and competent legal system is integral to upholding the rule of law, engendering public confidence and dispensing justice.

This, of course, is aspirational – an ideal that member states will measure up to in widely varying degrees. All too often, however, Commonwealth judges seem impotent, slow or lukewarm in checking the abuses of governments. Shocking, interminable delays by courts in trying cases and delivering judgments have eroded public confidence.

Lord Bingham, the highly respected British judge widely quoted by lawyers throughout the Commonwealth, said the rule of law required that ‘the law must be accessible and so far as possible intelligible, clear and predictable’. Seriously? Has there been anything less accessible by average people than the law? The language of the law, far from being intelligible to the average person, is so abstruse it might as well be a foreign language. To render it intelligible, the services of translators are required at hourly rates so prohibitive that it puts them beyond the reach of the majority of people. The result is that most people do not know their rights and have little understanding of basic legal processes; the poor, vulnerable and ethnic minorities tend to be the most disadvantaged and cannot stand up for their rights. From this perspective, the rule of law has certainly not provided ‘essential protection for the people of the Commonwealth’.

Recently, the Lammy review – a report examining the treatment of black, Asian and minority ethnic individuals in the UK’s criminal justice system – found that, despite making up just 14 per cent of the population, black, Asian and ethnic minority men and women in the UK make up a quarter of all prisoners. It pointed out that in Canada, indigenous adults made up 3 per cent of the population but a quarter of the prison population; in Australia, Aboriginal and Torres Strait Islander prisoners made up 2 per cent of the population, but more than a quarter of prisoners; and in New Zealand, Maoris made up 15 per cent of the population, but more than half of prisoners.

There are a variety of studies, reports and surveys that show that people across the Commonwealth have little faith in the criminal justice system. The problem is particularly acute in the tiny member states of the Commonwealth whose national budgets are equally tiny. In Belize, where I served as Attorney-General from 1999–2004, it was always a Sisyphean task to get any meaningful allocations to fund legal-aid programs, public education campaigns on citizens’ rights and training for magistrates and judges, or to adequately equip forensic laboratories or properly staff the judiciary. It proved impossible to convince Cabinet colleagues that hanging was not a deterrent to crime, or that simply enacting stiffer penalties or putting more police officers on the ground without a well thought-out, sustainable plan to attack the root causes of crime would not solve the problem. Knee-jerk reaction to public pressure invariably carried the day.

As for the law being predictable, it was the philosopher Jeremy Bentham who said that the power of the lawyer is the uncertainty of the law. Even for those able to afford the services of dorsal-finned practitioners, the outcome is hardly ever certain. Cases move at a glacial pace through a torrent of technicalities by pettifogging lawyers to a high court judge, whose decision might then be overturned, years later, by a court of appeal only to be further reviewed by an even higher appellate body that sometimes reinstates the high court judge’s decision. This tends to breed cynicism in people to whom it might appear that Lady Justice has been blindfolded so she cannot see the disservice being rendered in her name.

 

THERE IS, HOWEVER, a broader perspective that must inform the debate. It has been argued that countries that have emerged from the British common-law tradition have exhibited greater political and economic stability than those coming from the European civil-law tradition. While this may be a debatable proposition, it is a fact that only four Commonwealth states are included among those on the list of the top twenty-five countries on the Fund for Peace’s 2017 Fragile States Index.

Commonwealth countries of the Pacific, the Americas and Europe, as well as a number of states in Asia and Africa, have exhibited relative stability, especially when regard is given to the list of fragile states. Just recently, in September 2017, the Supreme Court of Kenya, in a historic decision, nullified the general elections that returned Uhuru Kenyatta as prime minister, citing irregularities by the electoral commission. It was the first time that a court on that continent had ever nullified elections. It would not have been possible without an independent and fearless judiciary and is a textbook example of what is meant by the rule of law serving as a limit on executive power. If Mr Kenyatta had refused to accept the court’s decision, the country could have plunged into the kind of violence that erupted during the 2007 elections.

This is an inspiring and welcome brushstroke on the evolving legal tapestry of the Commonwealth, which is too often marred by sordid scenes like the hanging of human rights activists in Nigeria in 1995 – widely regarded as ‘judicial murder’; or President Robert Mugabe’s illegal sacking of Chief Justice Anthony Gubbay in 2001 for striking down ‘fast-track’ land seizures. Fiji’s head of state, President Josefa Iloilo, outdid Mr Mugabe when, in 2009, he annulled the constitution and sacked all the country’s judges and magistrates. In 2012, Sri Lanka’s president dismissed the country’s first female chief justice, Shirani Bandaranayake, by ratifying a parliamentary vote to impeach her on corruption charges – notwithstanding the Supreme Court having ruled the impeachment process illegal and irregular.

Pakistan throws up the mocking incongruity of military dictators who co-exist with judges resplendent in embroidered robes and safeguarding the legal order. The greatest triumph for the rule of law came when Pakistani lawyers unleashed a nationwide mass movement to protest the unconstitutional sacking of Chief Justice Iftikhar Muhammad Chaudhry by President Pervez Musharraf. The movement, which led to bloody clashes between police and civilians, eventually secured Chaudhry’s reinstatement. The New York Times Magazine hailed it as ‘perhaps the most consequential outpouring of liberal, democratic energy in the Islamic world in recent years’. It remains the Commonwealth’s cause célèbre: people risking their lives in defence of the judiciary. If only such courage was reciprocated. Judges are called upon to risk far less on behalf of disadvantaged litigants, but often sacrifice their integrity to curry favour with powerful politicians or to secure the benefits of office.

Where the rule of law is only as secure as the dictator of the month, one at least knows what to expect. More widespread but less glaring – and therefore more difficult to combat – is where pliant, executive-minded judges are appointed through less-than-transparent processes and bleed out the independence of the judiciary with a thousand tiny cuts.

Respect for human rights is foremost among the shared values of the Commonwealth and is cited as one of its proudest legacies. While nations like the United Kingdom, Canada, Australia, New Zealand, Malta and most other islands of the Pacific region have abolished the death penalty (Nauru and Samoa are retentionist but not practising), it is a depressing fact that the more populous countries like India, Pakistan, Nigeria, Bangladesh, most African member states and all the Caribbean member states retain the death penalty.

There is no shortage of irony in this. Most Caribbean member states stubbornly refuse to sever the umbilical chord that binds them to the Privy Council – the same court that has infuriated Caribbean people and governments by imposing strict limitations on the circumstances in which they can hang their citizens. Fortunately, notwithstanding public sentiment and the attitude of some governments to the death penalty, constitutional courts across the Commonwealth, even in retentionist countries, are increasingly applying the limitations introduced by the Privy Council on the use of the death penalty (such as a time limit on death-row imprisonment, and limiting the applicability of the death sentence to only the most heinous murders). The fact that constitutional courts can cite and adopt each other’s judgments, especially the progressive and groundbreaking ones, is one of the most practical and relevant benefits of a shared legal culture.

 

THE HARMONISATION OF jurisprudence is an innovation that could, if aggressively deployed, help to resolve legal problems that afflict the 2.3 billion people of the Commonwealth, and so make a contribution to humanity unmatched in its history. It could even help to bring the Commonwealth closer to its muted ambition of breaking out of the subterranean confines of geopolitical obscurity and be recognised as an effective global organisation. When the Supreme Court of South Africa became the first in the Commonwealth to abolish the death penalty, this should have occasioned a meeting of chief justices from the Commonwealth to strategise on how best to replicate that ruling. No other court in a Commonwealth member state followed South Africa.

In The New Commonwealth Model of Constitutionalism (Cambridge University Press, 2013), Stephen Gardbaum cites Canada as an example of how innovative constitutional mechanisms can be used to resolve knotty socio-political issues. Simply put, the government sends serious and controversial legal questions – ‘references’ – to the constitutional court for determination. Gardbaum observes that this has the advantage of transferring political ‘hot potatoes’ from the political sphere to the courts (viewed as objective and professional), rather than risking a public backlash to the government from unpopular decisions. Gardbaum argues that, through the constitutional reference, the Supreme Court of Canada has rendered some of the most momentous rulings in Canadian constitutional history, including the Patriation Reference (1981), the Manitoba Language Rights Reference (1985), the Quebec Secession Reference (1998) – arguably the most significant political ruling the court has delivered in its history – the Same-Sex Marriage Reference (2004), and the Assisted Human Reproduction Act Reference (2010).

This practice of the government itself sending important constitutional questions to the court would reduce tension between litigants; eliminate delay, since there would be no prolonged and wasteful preliminary objections; and reduce costs. It could reposition Commonwealth judiciaries by placing them at the centre of public discourse on some of the thorniest issues of the day. They would be viewed less as defenders of the status quo and more as proactive reformers playing a relevant role in resolving problems such as the decriminalisation of homosexuality, legalisation of same-sex marriage and acknowledgement of the customary laws of indigenous peoples.

Stubborn refusal to repeal remnants of archaic, discriminatory laws introduced by British colonialists disfigures the legal legacy of the Commonwealth. In December 2011, homophobia among political leaders in Belize was so trenchant that key figures from the two main political parties mounted the same platform – a rare sight – to decry attempts to decriminalise homosexuality. It was left to South Africa to again blaze a trail by becoming the first country in the world to constitutionally protect gay and lesbian citizens. On 8 May 1996, South Africa’s constitution was amended to state that discrimination was prohibited on the basis of ‘race, gender, sex, pregnancy, marital status, ethnic of social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’ (my italics). But again, no other Commonwealth country followed this path. Sexual activity between consenting same-sex adults is still criminalised in thirty-six of the fifty-two Commonwealth member states. Some states have even gone further to introduce new laws criminalising same-sex relationships between women or increasing penalties for offenders.

Rearguard action is being fought by some states. In 2015, Mozambique (a former Portuguese colony) repealed its ban on consensual same-sex activity between adults. In the same year, Kenyan courts ruled that the Kenyan Constitution ‘includes all persons living within the republic of Kenya despite their sexual orientation’ and they therefore enjoy the right to freedom of association. One year later, the Supreme Court of Belize declared the anti-sodomy section in Belize’s Criminal Code unconstitutional. The government initially stated that it would not appeal the decision but, following pressure from the local association of churches, it lodged an appeal against the part of the decision that prohibited discrimination based on one’s sexual orientation. Belize is among those states that still maintain a prohibition against foreign homosexuals entering the country. Botswana, Seychelles, Samoa and St Lucia have evolved reforms that prevent discrimination in the workplace on the basis of sexual orientation; Malta and Fiji recently introduced amendments to specifically address sexual orientation and gender identity in their respective constitutions.

 

NOT SURPRISINGLY, THE picture that emerges from all this is of a Commonwealth in which the effect of the rule of law as a force for good has not been uniformly felt: the elite of society can afford its protection, but it remains inaccessible and elusive to a majority. The law, judges and courts are sufficiently forbidding to ordinary people without perpetuating the mystique surrounding them. Every year, elaborate traditional ceremonies still persist with chief justices inspecting guards of honor, brass band parades, and church services to mark the opening of the legal year and reinforce the ‘awesome majesty’ of the law.

What makes it difficult to consign these antediluvian traditions to the dustbin of colonial history is that lawyers across the Commonwealth practice them with a reverence that borders on religiosity. Half a century after independence, lawyers from many Commonwealth countries still order their bespoke barrister’s robes, jackets and trousers from Ede & Ravenscroft in London. Elevation to the queen’s counsel or senior counsel necessitates the purchase of a silk robe and a red bag (to put the robe in), and comes with the privilege of sitting in the inner bar of court in order to be distinguished from junior counsel, who sit in the outer bar. To top it off, judges in many countries are still referred to as ‘my Lord’ or ‘my Lady’. It is impossible to find more persnickety nonsense in any other profession or calling, save for the sacerdotal. But to call for its abolition would provoke rebellion by bar associations across the Commonwealth.

Nevertheless, it’s time to scrap the pomp and make the circumstances better for people; to shred the dull repetitive speeches refulgent with high-sounding ideals and devise ways of making the law work for average citizens.

Technological innovations can be used more effectively and extensively to make the legal system more accessible and less costly. Simple, straightforward court matters can be disposed of quickly and inexpensively via video link or teleconferencing. Average citizens should be able to go online and watch official, government-sanctioned videos on simple legal matters such as how to effectively prepare a valid will, when and how they might lawfully be detained or arrested by police, and what their basic rights are. Getting a simple, uncontested divorce should be available digitally and be no more complex than applying for a US or Schengen visa, eliminating the services of lawyers or the need to enter into a formal court setting. There should be a significant investment in finding ways to reduce the average citizen’s need for a lawyer.

People should be able to access free legal advice and information from electronic legal-aid centres on their mobile phones. Without this, the law and the legal system will persist in being an expensive battleground to which platoons of QCs are deployed, supported by mega-firms in glass-and-steel towers – as unreachable to most people as a luxurious first-class cabin on Emirates at 36,000 feet in the sky.


From Griffith Review Edition 59: Commonwealth Now © Copyright Griffith University & the author.

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